Citation Nr: 1751516 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-35 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for stress fractures of the right leg. 2. Entitlement to service connection for stress fractures of the left leg. REPRESENTATION Appellant represented by: Jeffrey Marion, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1978. He also served with the West Virginia Army National Guard (ARNG). This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. FINDINGS OF FACT 1. The Veteran is currently diagnosed with painful micro-vascular fractures (stress fractures) of the right and left legs. 2. During service the Veteran was treated for stress fractures in the right leg and experienced symptoms of stress fractures in the left leg. 3. The currently diagnosed stress fractures of the right and left legs are related to service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for stress fractures of the right leg have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for stress fractures of the left leg have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for stress fractures of the right and left legs, which is a total grant of benefits as to the issues on appeal, no further discussion of VA's duties to notify and to assist is necessary. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that currently diagnosed stress fractures of the right and left legs are related to stress fractures sustained during service. Next, the Board finds that the Veteran is currently diagnosed with stress fractures of both the right and left legs. The Board notes that various prior VA examinations, some of which the Board previously found to be inadequate, reported that the Veteran had no currently diagnosed disorder of either the right or left leg. Having reviewed all the relevant evidence of record, lay and medical, the Board finds these VA examination reports to be outweighed by the evidence provided by the Veteran's own private physician. VA received a December 2011 opinion letter from the Veteran's private physician of over 20 years, in which the private physician diagnosed the Veteran with "micro-vascular fractures of the legs causing pain," or stress fractures. Per an earlier November 2011 private treatment letter, the private physician noted that he had been treating the Veteran for symptoms related to the stress fractures since the Veteran first appeared for treatment in 1992. Considering the Veteran's long history with this private physician, the Board finds the December 2011 opinion letter diagnosing the Veteran with bilateral leg stress fractures to be far more probative than the VA examination reports. For these reasons, the Board finds that the Veteran is currently diagnosed with stress fractures of the right and left legs. The Board also finds that during service the Veteran was treated for stress fractures in the right leg and experienced symptoms of stress fractures in the left leg in July 1974, October 1974 and January 1975. Throughout the course of this appeal, in numerous lay statements, at the various VA leg examinations, and in testimony at the November 2011 hearing, the Veteran advanced having bilateral leg stress fracture symptoms both during service and since service separation. While no notation can be found in the service treatment records concerning a stress fracture of the left leg, the December 2011 private opinion letter conveys that the private physician reviewed the Veteran's service treatment records and discussed the leg symptom history with the Veteran. Per the private physician, a review of the Veteran's symptoms and history was consistent with a finding that the Veteran had experienced micro-fractures, or "shin splints," of both the left and right legs during service. As such, the Board finds the evidence to at least be in equipoise on the question of whether the Veteran had stress fractures in both legs during service. Review of the VA examination and opinion reports reflect that the VA examiners, for the most part, failed to adequately address the Veteran's contentions of continued symptoms since service separation and/or the findings of the Veteran's private physician in December 2011. Thus, the Board finds these VA opinions to be of little probable value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Finally, after a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed stress fractures of the right and left legs are related to the in-service stress fractures. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that the stress fractures of both the right and left legs were incurred in active service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for stress fractures of the right leg is granted. Service connection for stress fractures of the left leg is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs